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Tuesday, July 02, 2013

More on Adoptive Couple v. Baby Girl (5 of 4)

In response to some of the comments received on our series about the Baby Girl case (posted on Prawfs earlier this week; the final post, with links to the others, is here), my co-author Kim Pearson addresses some of the family law issues:

Our original posts elided the issue of the
mother’s rights to make decisions about the child, and several of the comments pointed out her invisibility. Her role is as complicated as the father’s
and subject to nearly the same level of media scrutiny, albeit in a much more
positive light. There are a few things
that are worth mentioning about the media representations of the birth mother,
Christina Maldonado. Something that
troubles me is that the media casts Maldonado as the smart, loving, heroic
birth mother who willingly relinquished her child to a better life because she
couldn’t afford to raise the child. I
have no idea if that was her actual thought process, but the media represents
her choice as being a combination of love for Veronica and economic reality.

This version represents the all too familiar
narrative applied to many women of color and low-income women who relinquish
their children to higher income “ideal” couples. Many other feminist scholars have thought
about this and cover it well, particularly when looking at the transfer of
children worldwide in the aggregate, where poor women often believe that they
can’t be good parents because of their income status. If you want to know more about this work, a
good place to start is with Laura Briggs’ book, Somebody’s Children, a critique
of transracial and transnational adoption.
Kim Park Nelson, who did her dissertation on Korean American adoptees,
discusses birth mothers here
who don’t believe they’re worthy parents because they are poor.

If a woman does not wish to raise a child, I
completely support her decision to relinquish the child to the other biological
parent or adoptive parent(s). However,
if she is relinquishing because she has internalized the belief that being a
person of color, low income, single, or generally non-normative and thus an
inferior parent regardless of how much she loves the child, then that’s much
more problematic. In the earlier post, I was trying to draw a
connection between mothers who are in this second category and Brown’s
situation, not trying to erase Maldonado altogether. Imagine a terrifying future for poor women
where they are offered the choice of paying for their children’s costs
themselves or relinquishing them. To be
clear, I’m not commenting on Brown’s ability to pay support or not, but
pointing out the dangerous possibilities when this choice completely defines
the meaning of parenthood for men and women.

Some comments also expressed concern about the possibility of a law that would allow dads (or any parents) to change their minds about adoption up until the last second. I agree that a cut off time makes sense. But, I worry that the media representations of Brown as a deadbeat dad
obscured the fact that he was trying to do the things required to establish
that he wanted to parent Veronica well before the adoption was anywhere near
being finalized. We never know until
terminations of parental rights are properly executed and adoptions are
finalized if people will change their minds.
That happens, but there’s a very strong bar to disturbing final adoption
decrees. But, I wasn’t arguing for giving time for a change of heart up to the
last minute. It’s not as though Brown was bursting into the courtroom as the
Capobianco’s were finalizing the adoption.
Veronica was a very young infant when he began trying to establish and
exercise his rights. I want to disrupt
the idea that men and women both know at the same time that they are parents
and receive the same treatment in regards to decisions about terminating
rights.

In practice, messing up a termination is bad, bad business
because doing so results in personal suffering and malpractice suits. So,
lawyers will often take the belt and suspenders approach to parental rights
terminations. Some counsel birth parents
and have them sign and initial paperwork attesting to the fact they understand
the process and legal significance of termination in addition to the
termination paperwork itself. Some
require birth parents to appear before a judge to prove up the termination so
that there is a record that the process and meaning of termination has been
explained and voluntarily executed.

My critique is really
about state law and seeming approval the Court gave S. Carolina’s formulation
of fatherhood. If Brown weren’t subject
to ICWA and he appeared in court with evidence that he changed his mind before
the adoption was finalized, that he didn’t understand fully the ramifications
of signing a questionably legal document to terminate his parental rights, that
he made good faith efforts to support the child, tried to place the child with
his parents while deployed, and wanted to raise the child now – all this evidence could have been viewed as
part of establishing paternity. Rather
than framing his actions as infringing on Maldonado’s sole legal and physical
custody of the child, it could have been the usual division of rights when a
fit, biological parent seeks to establish a legally recognized relationship
with a child. Their disagreement about
whether to place the child for adoption or grant him sole legal and physical
custody would have been like other kinds of disagreement between birth parents
and the fate of their children. Birth
parents frequently disagree about their children, so the state has to balance
parental rights and children’s best interests.
A birth mother wouldn’t be forced to parent against her will. If she wished to place her child for adoption
and believed she had sole custody, she could place the child with the
prospective adoptive parents. Once
notice of the pending adoption is served and if the birth father contests it,
then the court would weigh the rights of the birth father (does he have any?) against
the rights of the birth mother (does she really have sole custody?) and the
interests of the child who has formed an attachment to the prospective adoptive
parents.

In Brown’s case, we have the possibility of a fit father who
needed some time to come to terms with his existing fatherhood while his
intimate partnership was dissolving. As
I stated before, I’m not giving him a pass for failing to help support
Maldonado during the pregnancy and first months of Veronica’s life – that can
be a difficult time in the best circumstances and she was struggling with the
dissolution of the relationship, too.
But, I’m concerned about the apparent ease with which courts diminish
the possibilities for men to become legal and functioning fathers because of
media representations, masculinity norms, and difficult legal standards.

I don’t think taking an approach that gives
men the possibility of acting before adoption proceedings are finalized would
destabilize the entire process or infringe on women’s rights to make
determinations about adoption. There are
also processes in place to prevent women from being in limbo indefinitely if a
birth father does not wish to sign a consent for termination; it’s not as if
women have no recourse. There are
deadlines and standards in place for demonstrating an active interest in
establishing paternity and custody of a child.
In response to the concerns about men without educational attainments, I
agree that they are vulnerable. I worry about parents who do not understand the
culture. There are several accounts of
international birth parents who thought adoption meant something more like
foster care, and they signed away their rights to their child.

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Comments

I wanted to comment on the idea that media messages are contributing to poor women's ideas that they can't be good parents. I think that's true, but it seems to be only telling half the story to look at it that way. Having grown up poor, I got to see first hand how poverty really can impact ability to parent in terms of parental stress, ability to feed one's children etc. I'm not advocating by any means that poor parents give up their children, but I think the system is set up so that they will be encouraged to. Capitalism and welfare reform have real-world impacts on poor parents' abilities to meet their children's needs. I don't know if we as a society ever will, but we need to do more to support poor parents economically and poor parents of color especially.